Brazil’s Supreme Court Chief Justice Dias Toffoli struck down a decision that would have set former President Lula free from prison. Just hours prior, Justice Marco Aurélio Mello had granted an injunction afternoon ordering the release of all those who are serving jail sentences after an adverse appeal decision. The prime beneficiary of this measure is former president Luiz Inácio Lula da Silva, who could be released from jail this week. The plaintiff in the case was the Communist Party of Brazil (PCdoB).
Historically, prison sentences in Brazil are not executed until the defendant has exhausted all potential appeal routes of the country’s legal system—of which there are many. In the past, this has often led to convicts with the funds to hire expensive legal counsel avoiding jail time altogether.
In 2016, however, the Supreme Court went against this practice, forcing convicts to begin their sentences after their first failed appeal.
Justice Marco Aurélio Mello’s injunction means that Lula, who is currently serving a jail sentence after having a corruption and money laundering conviction upheld by an appeals court, could be released from prison. As the injunction was granted on the final session of the Supreme Court before the holidays, there will not be time for the measure to be taken to the full court and analyzed, meaning it should remain in effect until the justices return to work in February.
Lula’s lawyer Cristiano Zanin has stated he will file a release request for the former president this afternoon in Curitiba.
The injunction comes two days after Chief Justice of the Supreme Court, José Antônio Dias Toffoli, announced the court would hold a definitive trial on the matter of executing prison sentences after an adverse appeal on April 10, 2019.
As the Supreme Court will now begin its holidays (returning to work on February 1), there will be no time to take Justice Mello’s injunction to the full court for deliberation. However, Chief Justice Toffoli will remain on call at the court until the end of the year, and he would be able to issue his own injunction as early as tomorrow to neutralize the effects of his colleague’s decision.
What’s more, there is no guarantee that Lula’s release request will be granted by the trial judge in Paraná, where the motion has been filed. If the petition is in fact rejected, it will be appealed at the Supreme Court and decided on by Chief Justice Toffoli.
Last minute decisions
Supreme Court Justices have a habit of issuing controversial decisions during the final court session before the holiday period.
Exactly 12 months ago, Justice Mello’s colleague, Justice Gilmar Mendes, issued five decisions on the last day of work for the Supreme Court, ordering the release of the wife of former Rio de Janeiro governor Sérgio Cabral; barring the compulsive processing of defendants and suspects; blocking indictments against four politicians; suspending an investigation against the then-governor of Paraná Beto Richa, and repealing the arrest of another corruption suspect.
As there is no time for the court to debate these monocratic decisions, they remain in force until the Court returns from its recess, in February, unless a subsequent injunction is filed by another Supreme Court Justice.
Another such maneuver took place this year in the lower courts, this time involving Lula’s appeals court conviction. On Sunday, July 8, appellate judge Rogério Favreto issued a release order for the former president, claiming there were no legal grounds for his imprisonment.
In similar fashion, the order was issued on a Sunday, when Mr. Favreto was the only judge working at the court. Then Federal Judge Sérgio Moro (now the future Minister of Justice) intervened, despite being on holiday in Europe and only being a trial court judge, of a lower level than Mr. Favreto. Mr. Moro demanded the release order not be carried out, and a legal tug-of-war ensued which resulted in Lula remaining in jail.
This story will be updated